9/28/2007 @ 11:20AM

The Organ Donor Taboo

Don’t be a sick person in need of an organ donation in America. As of mid-September 97,191 patients were waiting on the list maintained by the United Network for Organ Sharing. More than 7,000 of these patients will die while on the list; thousands of others will be booted off, too weak or old to qualify for a transplant.

The mismatch between demand and supply is getting worse. Though 6,729 live donors volunteered last year and the list of needy patients increased by only 4,100, many donor organs are not viable and the backlog remains. A total of 28,930 transplants took place last year, 6,700 from live donors and the rest from cadavers. Meantime, some 90,000 patients got sicker and 7,041 died.

What’s the solution? Let’s consider something that has long been a taboo in this country: payment to donors. I don’t favor a wholesale repeal of the law against buying and selling organs. I support, instead, a shift of power to the states on this touchy matter. The federal government should let states write their own laws on organ donor compensation.

Federal law criminalizes payment for organs. It’s a felony for you to sell one of your kidneys, and it’s a felony for your family to get payment for a cadaver transplant after you die. The ban includes helping out with household expenses or other costs borne by the donor or donor’s family.

States (or regions, if states collaborate) should be allowed to test pilot programs and provide a reprieve for patients. Such experiments would not disturb altruistic donations, nor need they alter the rules on who gets priority in receiving an organ. We do not have to contemplate whether rich people could outbid poor people for a kidney. I have in mind only that states could take novel approaches to increasing the supply of donors.

The federal government could retain some power, as it does in the Medicaid system. States get some flexibility in setting rules, and they can ask for waivers from the U.S. Department of Health & Human Services. Several states got waivers from section 115 of the Social Security Act, enabling them to help Hurricane Katrina survivors by making treatment available to those who normally would not qualify.

Currently Medicaid pays for dialysis, which costs from $60,000 to $90,000 per year. Why not use those funds for kidney transplants? A transplant might cost $70,000, plus another $5,000 a year for maintenance medicine.

Financial incentives for organ donation are very restricted. Wisconsin lets live donors deduct, on their state income tax returns, expenses related to donating an organ, such as transportation and medical expenses. The Pennsylvania legislature proposed nearly a decade ago to provide a burial benefit of up to $300, paid by the state to relatives who donated their deceased relatives’ organs. Given more freedom, a state might reimburse live kidney donors for lost wages.

At a recent conference sponsored by the Illinois branch of the National Kidney Foundation, I suggested state experimentation with donor incentives and was roundly criticized by one audience member for advocating a system that would exploit minorities. This rhetoric hurts people of color. Ask yourself how the current system impacts racial minorities. African-Americans make up a third of the kidney transplant waiting list. They wait longer than any other ethnic population for organs, and they suffer the highest death rate while waiting.

Some commentators fear that African-Americans and others will not be able to “afford” organs–that is, they won’t have the insurance to cover the $70,000 transplant cost. But those fears are overstated because Medicaid currently pays for transplants. Moreover, there is no reason African-Americans or other groups could not organize among themselves in their churches and fraternal societies. Under present federal law the legality of directed donations is murky. Let states clarify the matter.

In the array of products from the human body–ova, sperm, milk, tissues, blood, bones and hair–only organs are excluded from markets. It’s time to end this rule, and save lives.

Michele Goodwin, Visiting Professor of Law, University of Chicago Law School, and Professor , University of Minnesota Law School.